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Kardashian’s Khroma causes ‘konfusion’ with Chroma Makeup

Recently, the Kardashian sisters of reality show fame filed two applications to register trademarks with the word “khroma” for use with their upcoming cosmetic line, Khroma Beauty, due to launch next month.

This is particularly disconcerting to the owners of Chroma Makeup, a Beverly Hills, California cosmetics boutique, who have expressed worry about customer confusion. The co-owners have stated on the welcome page of Chroma’s website that they have retained legal counsel in hopes of persuading the Kardashians to change the name of their cosmetics line. “Because our Chroma customers are being confused into maintaining the mistaken and incorrect belief that we have decided to market inferior cosmetic products,” the website continues, “we believe that the Kardashians’ actions are damaging our business.”

Having allegedly already received multiple inquiries from clients who presumed the boutique had some association with the Kardashians, the Chroma Makeup owners have gone so far as to make statements to TMZ, a celebrity news and gossip website, suggesting that “the reality stars’ new range “cheapens” the Chroma line and customers may even become “embarrassed” to say they wear Chroma because of the possible confusion with the Kardashian brand.

Whether Chroma Makeup, the first user of the brand, will force the Kardashians to change the name of their cosmetics line remains to be seen. But if Chroma Makeup does seek to enforce its mark, an examination of the relevant marketplace factors in Chroma Makeup’s potential claim suggests that the Kardashians will likely face an uphill battle. After all, the names of the brands in question are certainly similar both in look and sound (the Kardashians’ ‘Khroma’ distinguished from ‘Chroma’ only by its first letter). The marks will also both be used to sell cosmetics, so there is direct competitive proximity. There’s even evidence of actual customer confusion which, while not determinative, would certainly tip the scale in Chroma Makeup’s favor. And for the purposes of bringing a claim to protect its mark, it doesn’t even matter that Chroma Makeup has not registered its name with the USPTO, since it was the first user of the name.

But, an argument can still be made in defense of Khroma Beauty. To start, the price points and points of sale for the respective brands do differentiate them from one another. While Kroma Beauty products will be sold nationally in mass-market retail stores, including CVS, Ulta and Sears outlets at relatively low price points, a single tube of Chroma Makeup lipstick, sold out of its single free-standing Beverly Hills boutique, will cost $22.50. In fact, a Khroma Beauty spokesperson has made statements emphasizing those points, adding that the Khroma Beauty product marketed together with the famous Kardashian brand name, and will be sold with a distinctive trade dress.

Although these facts play in the Kardashians’ favor, it does seem as though Khroma Beauty is doomed to rebrand. Even if Chroma Makeup’s rights are not obstacle enough, Kroma Makeup, yet another independent cosmetic brand based out of Florida, filed its mark with the USPTO in 2010.

Compare jurisdictions: Litigation: Enforcement of Foreign Judgments

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